A tutela jurídica da vontade: história da superação do voluntarismo no direito civil brasileiro

Abstract

The “voluntarism overcome” is the enunciate that synthesizes a historical narrative very common in the Brazilian Civil Law discourse in our days. Its considered voluntaristic any juridical theory or doctrine that assert some centrality to the concept of will in the definition of juridical categories like contract or juridical act (“negócio jurídico”). They say that voluntarism have been a juridical conception with liberal and individualistic basis, elaborated on the 19th century, and that, belong 20th century, because of historical, political e economic transformations, it would’ve been “overcame”. In the other hand, saying that it is overcame, is supposing that, in some point of our theoretical discursive past, this so called voluntarism have been refuted. Our investigation seeks to enlighten this supposed refutation. For that, our theoretical framework is based on Antonio Manuel Hespanha’s History of juridical category, and we are based also the Michel Foucault’s L’archeólogie du savoir. The approach begins by analyzing the current Brazilian civilistic discourses, of which we can extract some results. In the first place, it possible to ascertain that the Civil Law History imagination have being decisive on determining its theoretical agenda these days. In the second place, the first part of the investigation points clearly to the Italian civilist Emilio Betti’s work, particularly his Teoria generale del negozio giuridico, as the one that should contain the expected voluntarism refutation. Now, opening the second part of the approach, and seeking the refutation of voluntarism where it’s supposed to be, we curiously come across to another historical narrative, articulated as a theoretical argument. In that case, a dispute on the historical imagination of Roman Law. In that dispute, the position taken from Betti is not based on purely juridical and theoretical dispositions. But it was guided by historical circumstances of his time and place, in which fascism was in vogue. In that context, Betti took clearly a side, and, was we will argue, his theory of judicial act would sketch his own contribution to the mobilization for the political, juridical and administrative reforms focused on the totalitarian State consolidation.